Redundancy pay, contracted hours or average of hours??

hels123_2

I am facing redundancy (for the 5th time in this company in 8 years!!) From January I have been working extra to cover a colleague who has been seconded to another role. I am contracted 18.75 hours, but have been working 37.5 all of jan, feb, march, then 30 hours april and may, then down now to 26 hours from june which is set to continue as such, but they will not contract the hours, I have to claim additional hours. If it did come to a redundancy payout, would I just get my contracted hours or would they take my recent extra hours in to consideration?

Many thanks.

Andy_L

If it is statuatory redundancy then your weekly pay will be based on the average of the 12 weeks before redundancy, ie based on the hours you actually worked.

http://www.direct.gov.uk/en/Employment/Employees/Pay/DG_175994

If it is better terms than statuatory then the definition is what ever they say in the contract/staff handbook

marybelle01

Andy_L wrote: »

If it is statuatory redundancy then your weekly pay will be based on the average of the 12 weeks before redundancy, ie based on the hours you actually worked.

http://www.direct.gov.uk/en/Employment/Employees/Pay/DG_175994

If it is better terms than statuatory then the definition is what ever they say in the contract/staff handbook

No it isn't. If the hours of the contract are variable this is correct. If the additional hours are classed as overtime then overtime isn't included and the calculation is based on basic pay.

hels123_2

Ah thats a shame. They would not contract these on going additional hours - no wonder!

Thank you

marybelle01

hels123 wrote: »

Ah thats a shame. They would not contract these on going additional hours - no wonder!

Thank you

That isn't quite the same thing. Variable hours aren't contracted either. The distinction is whether these are classed as overtime. I suspect that if you have to claim the hours, they are, but you should probably ask the question.

princessdon

I can tell you the following from bitter personal experience

It is the contracted hours that count - BUT if you have a union ask them for advice. In my personal situation they were able to negotiate the extra. Doesn't mean they can for you (it's above legal) but if in a union ask them to approach them (nothing lost nothing gained). Good luck

Andy_L

marybelle01 wrote: »

No it isn't. If the hours of the contract are variable this is correct. If the additional hours are classed as overtime then overtime isn't included and the calculation is based on basic pay.

From the link I gave

"You can’t include overtime hours when calculating your week’s pay unless your employer must pay it to you under your contract of employment."

"If you do some work outside of the hours you normally work, for example voluntary overtime, it can be included when calculating your average week’s pay. However if you are paid a higher overtime rate for work that could be done in normal hours, the higher rate of pay can’t be used when calculating your week’s pay."

I would interperet that 2nd highlighted bit meaning you can't use "time and a half" to calculate it but have to use "plain time"

marybelle01

Sorry. I acknowledge that the link is misleading. But it is wrong. Overtime can only be included in the calculation if it is contractual overtime and you must do it.

http://www.xperthr.co.uk/faqs/topics/9,88/redundancy-rights.aspx?articleid=104692&mode=open

http://www.emplaw.co.uk/lawguide?startpage=data/026090.htm

http://www.redundancyexpert.co.uk/overtime-calculated-redundancy-pay.html

Andy_L

Intestering, unfortunatly those links sort of disagree with each other, so thats 3 differing sources

One is "if your employment of work stipulates that you have to do it as part of your job" ie you can't refuse o/t if it needs to be done whilst the other says

"Overtime is included in "normal working hours" only if the employee is entitled to overtime under the contract of employment, ie if the employer must provide overtime and the employee must work it." ie you contract says you will be given & must work x hours o/t /week.

I think, like may of these problems, it really depends on the exact wording of your contract and how/why you are doing the extra hours, eg whilst they may not "contract these on going additional hours" ie change it to say 37.5hours it may oblige you to work extra hours in which case the hours are "required under the contract of employment" unlike optional/voluntary o/t

Time to ask them directly and speak to an employment lawyer if you don't like the answer

getmore4less

It is a good idea to get any requests to do extra work in writing, so they are documented and depending on the wording they could become contractual rather than normal overtime.


Something like we need you to cover the absence of X for 3 months would likly be enough to make the hours contractual on a temp basis, or enough to go to an ET to get them to decide.

Contract changes do not have to be to the actual contracts or done as a formal contractual change.

Remember places like direct.gov are attemts to simplify/summarise the legislation and often mislead missing out critical information for some situations.

marybelle01

getmore4less wrote: »

Remember places like direct.gov are attemts to simplify/summarise the legislation and often mislead missing out critical information for some situations.

I agree. Or possibly written by someone who writes the scripts for the ACAS call centre? It's odd how I pick up bits of useful knowledge, but it's a staple of working with poorer families and especially, although not always, women. Care assistant type jobs and retail staff almost always have these catchy contracts where people can work 40-50 hours a week and when made redundant get two and sixpence because they're contracted to 4 hours a week! The other one to watch for is when you have a variable hours contract and it suddenly varies down for 12 weeks. You can bet redundancy is coming. It really isn't fair when people could have been working long hours for years.